B-171337, JAN 4, 1971

B-171337, JAN 4, 1971

TORT CLAIM - COLLUSION WITH GOVERNMENT VEHICLE DENIAL OF CLAIM OF MOTORIST WHO MAINTAINS THAT AN INTERAGENCY MOTOR POOL CAR PULLED OUT FROM A PARKING SPACE INTO THE ALLEY-WAY HE WAS ENTERING AND THE GOVERNMENT CAR STRUCK HIM STRAIGHT-ON ON BASIS THAT CLAIMANT'S FACTS ARE CONTRADICTED BY THE DRIVER OF THE GOVERNMENT CAR AND THE POLICE REPORT OF THE ACCIDENT. THE GAO WILL ACCEPT THE TESTIMONY OF A GOVERNMENT EMPLOYEE IN ABSENCE OF CONVINCING EVIDENCE THAT SUCH TESTIMONY IS INCORRECT; CLAIMANT'S REMEDY IS IN FILING SUIT AGAINST THE GOVERNMENT.

TO MRS. G. R. SHEPP:

YOUR LETTER OF OCTOBER 23, 1970, ADDRESSED TO THE GENERAL SERVICES ADMINISTRATION AND PRESENTING YOUR CLAIM FOR $95 DAMAGES TO YOUR 1963 FORD SEDAN ALLEGEDLY ARISING FROM A COLLISION ON FRIDAY, OCTOBER 9, 1970, ON 17TH STREET, N. W., BETWEEN "M" AND DESALE STREETS, IN WASHINGTON, D. C., INVOLVING YOUR AUTOMOBILE DRIVEN BY YOUR HUSBAND AND A 1968 RAMBLER (INTERAGENCY MOTOR POOL CAR) DRIVEN BY MR. CHARLES F. MORRIS, AN EMPLOYEE OF THE UNITED STATES GENERAL ACCOUNTING OFFICE, HAS BEEN REFERRED TO OUR OFFICE FOR CONSIDERATION.

YOUR LETTER STATES THAT MR. MORRIS "PULLED OUT FROM A PARKING SPACE INTO THE ALLEY-WAY WHICH OUR CAR WAS ENTERING, AND HAD ENTERED, ALL BUT THE REAR, WHICH WAS STRUCK STRAIGHT-ON BY YOUR VEHICLE." HOWEVER, MR. MORRIS MAINTAINS THAT HIS CAR WAS PARKED IN THE CURB OR PARKING LANE, AT FROM 8 FEET TO 10 FEET FROM THE ALLEY, WITH ITS 4-WAY FLASHING EMERGENCY LIGHTS ON; THAT YOUR CAR TURNED AROUND A CEMENT-MIXER TRUCK WHICH WAS DOUBLE- PARKED TO THE REAR OF HIS (MR. MORRIS'S) CAR, HIT THE LEFT FRONT FENDER AND THE LEFT END OF THE FRONT BUMPER OF HIS CAR; WENT UP ON THE CURB AT THE ALLEY ENTRANCE; AND WENT ABOUT 15 FEET INTO THE ALLEY BEFORE STOPPING. MR. MORRIS STATES THAT HIS CAR HAD NOT MOVED BEFORE, AND WAS NOT MOVING AT THE TIME OF, THE IMPACT. IN OTHER WORDS, MR. MORRIS MAINTAINS THAT HIS CAR WAS STANDING MOTIONLESS IN THE PARKING SPACE WHEN IT WAS STRUCK BY YOUR CAR.

MR. MORRIS ALSO STATES THAT HIS CAR WAS STILL IN THE POSITION IN WHICH IT WAS SITUATED AT THE TIME OF THE IMPACT WHEN THE POLICE ARRIVED AND THAT, ALTHOUGH HE REQUESTED THE POLICEMAN TO MEASURE HIS CAR'S POSITION OR TO PHOTOGRAPH IT, NEITHER MEASUREMENTS NOR PHOTOGRAPHS WERE TAKEN. THE POLICE REPORT ON FILE IN OUR OFFICE LIKEWISE INDICATES THAT NO MEASUREMENTS OR PHOTOGRAPHS WERE TAKEN. HOWEVER, OFFICER JAMES J. GILDEA, BADGE 1438, WHO INVESTIGATED THE ACCIDENT, STATES THAT MR. MORRIS'S CAR WAS AT LEAST 5 FEET FROM THE ALLEY AND WAS IN A PROPER PARKING POSITION. THIS STATEMENT WOULD APPEAR TO CONTRAVENE YOUR ALLEGATION THAT MR. MORRIS "PULLED OUT FROM A PARKING SPACE INTO THE ALLEY-WAY *** ."

YOUR LETTER OF OCTOBER 23, 1970, STATES THAT "THERE IS A POLICE REPORT OF THIS ACCIDENT WITH THE INDICATION THAT YOUR VEHICLE WAS GOING STRAIGHT AHEAD AND MY HUSBAND WAS A RIGHT TURNING VEHICLE." HOWEVER, THE POLICE REPORT DOES NOT SUPPORT THIS CONCLUSION. THE SPACE ON THE REPORT HEADED "18. DIRECTION OF TRAVEL AND STREET," SHOWS "S. ON 17TH ST., N.W." FOR BOTH VEHICLES. WHILE THE ACCIDENT DIAGRAM ON THE POLICE REPORT USES ARROWS TO INDICATE THE POSITIONS OF THE TWO VEHICLES INVOLVED, THERE IS NOTHING THEREIN TO INDICATE THAT THE ARROW REPRESENTING OUR VEHICLE WAS INTENDED TO SHOW ANYTHING MORE THAN THE DIRECTION IT WAS FACING AT THE TIME OF THE ACCIDENT. HENCE, SUCH REPORT IS COMPLETELY INCONCLUSIVE AS TO WHICH PARTY WAS AT FAULT.

THE RECORD INDICATES THAT AN INFORMAL MEETING WAS HELD AT THE CORPORATION COUNSEL'S OFFICE ON OCTOBER 20, 1970, AT WHICH YOUR HUSBAND AND MR. MORRIS GAVE THEIR VERSIONS OF THE INCIDENT AND OFFICER GILDEA EXPLAINED THE FINDINGS OF HIS INVESTIGATION. THE RECORD FURTHER SHOWS THAT THE ATTENDING ATTORNEY DETERMINED THAT THERE WERE NO GROUNDS FOR ANY ACTION TO BE TAKEN BY THE CORPORATION COUNSEL AND THE PARTIES WERE DISMISSED.

ON THE BASIS OF MR. MORRIS'S VERSION OF THE INCIDENT, IT SEEMS APPARENT THAT HE WOULD HAVE NO LIABILITY FOR THIS ACCIDENT. WHILE IT ALSO WOULD APPEAR THAT ON THE BASIS OF YOUR VERSION HE WOULD BE LIABLE, WE ARE FACED WITH CONTRADICTORY TESTIMONY LEADING TO OPPOSITE CONCLUSIONS. IN SUCH A CASE WE MUST, OF NECESSITY, ACCEPT THE TESTIMONY OF OUR OWN EMPLOYEE IN THE ABSENCE OF CONVINCING EVIDENCE INDICATING THAT SUCH TESTIMONY IS INCORRECT. IN THIS INSTANCE, THERE IS NO SUCH EVIDENCE OTHER THAN YOUR STATEMENT AND, IN FACT, OFFICER GILDEA'S STATEMENT TENDS TO SUPPORT MR. MORRIS'S VERSION OF THE ACCIDENT.

ON THE BASIS OF THE PRESENT RECORD, WE HAVE NO ALTERNATIVE BUT TO DENY YOUR CLAIM. IF YOU ARE DISSATISFIED WITH THIS DENIAL, YOU MAY FILE SUIT AGAINST THE GOVERNMENT IN THE APPROPRIATE UNITED STATES DISTRICT COURT NOT LATER THAN SIX MONTHS AFTER THE DATE OF MAILING OF THIS LETTER. SEE SECTION 14.9 OF TITLE 28, CODE OF FEDERAL REGULATIONS.